Q: Thank you for updating the copyright overview on this site. What are the most important changes that you want us to know?

A: Because the update reflects changes from 2014 through 2016 it includes a few decisions that readers may be familiar with such as the Google book scanning decision (Author’s Guild v. Hathitrust, discussed below), the sequel rights to Catcher in the Rye, (Salinger v. Colting), the use of news – including business news and video clips – for transformative purposes (Swatch Grp. Mgmt. Servs. Ltd. and Fox News v. TVEYES, Inc.), the use of pop culture references (the “Who’s on First” comedy routine) within a play (Fox News v. TVEYES, Inc), and the ability to parody a popular movie (Point Break). (Keeling v. Hars). I think the cumulative importance of these and other cases that are discussed, is the evolving liberalization of fair use standards.

Q: Do we have any more clarity on Fair Use with respect to academic or library uses?

A: In order to provide more clarity, I think academics and librarians would like to see courts or legislators adopt quantitative guidelines – for example, establishing what percentage of a book or article constituted fair use. That seems unlikely based on the Eleventh Circuit rejection of the “10% rule” in Cambridge University Press v. Patton. The District court had allowed copying of 10% of a work as recommended by the Code of Best Practices, a set of fair use guidelines established by a group of publishers and academics. But the Eleventh Circuit rejected that standard and instead emphasized the importance of a flexible case-by-case fair use analysis. The good news for the academics was that on remand the majority of copying at issue was permitted under fair use.

The other good news for academics was the ruling in Author’s Guild v. Hathitrust. Most of your readers are probably aware of this case, in which the Second Circuit ruled that digital scans of a book constituted a fair use when used for two purposes: a full-text search engine, and electronic access for disabled patrons who could not read the print versions. The Second Circuit remanded as to whether “preservation” constituted a third fair use purpose, but the parties settled in 2015 before the issue could be litigated.

Bloggers and artists often ask, “how much of a photo do you need to alter to avoid copyright infringement?” Five changes? Fifteen? The Seventh Circuit addressed the issue in the Kienitz v Sconnie Nation case recently. According to the court, Sconnie Nation made t-shirts displaying an image of Madison Wisconsin mayor Paul Soglin, using a photo posted on the City’s website that was authored by photographer Michael Kienitz.

The court looked to the Cariou v Prince decision, but complained that its approach to appropriation art looked only at whether a work is “transformative” and doesn’t fully address a copyright owner’s derivative rights under 17 U.S.C. Sect. 106(2). This court analyzes the market effect, looking to see if the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).

The photographer in this case did not claim that the t-shirt was a disruption to his own plans to license the photo for t-shirts or tank tops. He did not argue that demand for the original work was reduced.

And as for Fair Use factor three, the amount and substantiality of the portion used … the court wrote “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.” The original background is gone, its colors and shading are gone, the expression in the eyes can no longer be read, and the effect of the lighting is “almost extinguished.” “What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

As part of its new draft Compendium of U.S. Copyright Office Practices, Third Edition, we have guidance on registration for websites. The draft of the full compendium is over 1200 pages and covers publication, recordation, notice, deposits, along with other topics. Members of the public may make comments anytime before (or after) the Third Edition goes into effect on December 15, 2014. For more see http://copyright.gov/comp3/

The U.S. Copyright Office came to Stanford Law School yesterday to conduct a roundtable on Recordation Reengineering, The Stanford Law School Law and Policy Lab submitted comments and a thoughtful White Paper, and live tweeted the proceeding along with us (see @slspolicylab and @fairlyused). The Law and Policy Lab was represented at the roundtable by Peter Holm, third year law student. We interviewed Peter to get the essence of the issue and the White Paper, which is available as document 23 on the Copyright Office comments page.

The roundtable was conducted by Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office.

Mary Minow: What was the impetus that led Stanford to research and write this White Paper?

Peter Holm: The Copyright Office contacted Stanford initially and Professor Paul Goldstein contacted us. I took a copyright class in the Fall of 2012 with Professor Goldstein. He emailed a few of us over the summer to see if we were interested. He described it as a chance to offer concrete suggestions to modernize the Copyright Office operations.

Minow: That sounds broad. When did the focus narrow to copyright document recordations?

Holm: That narrower focus developed in the Fall as we spoke with Maria Pallante, Register of Copyrights; Jacqueline Charlesworth, General Counsel, United States Copyright Office, and then with Professor Bob Brauneis who is there as a scholar in residence on these issues.

Minow: Why does this matter?

Holm: To have economic value, an owner of copyrighted works has to be able to sell and make his works available. If you don’t know who the owner is, you can’t make those transactions and the works lose value, so availability of this information is integral.

Minow: How do people find out now about who owns what copyrights?

Holm: It varies by industry. Neither registration of copyrights nor recordation of copyright transfers are required, but both have benefits to the owner. Because taking these steps is voluntary, the amount of information available for any given work varies considerably. So for example, in the music industry, there is extensive ownership information and licensing availability through ASCAP, BMI and the Harry Fox agency. So if I want to play Elton John at a party open to all Stanford students, I can get a license from those collecting societies and not worry about who owns the rights.

Whereas if I find a book in the library, published in 1955 and I want to use it, it’s harder to find information. There are probably records at the Copyright Office for the initial owner, as registration used to be required, but subsequent transfers might not have been recorded, so many questions remain. Did he transfer the copyright at some point? If not, is the author still alive? Did it go to his heirs, and who are they?

There is a substantial cost to investigating this, and often one doesn’t know who to talk to.

Minow: What’s the gist of your proposal?

Holm: It’s not a proposal per se. It’s really a list of options and tradeoffs. We look at the role of the copyright office. Should it hold a giant database, partner with third parties? Really it comes down to how do we best provide access to the public and get the information they need without overly burdening authors with unnecessary requirements? We don’t want to make it too hard for them to exercise their rights to transfer works, since transfers are potentially beneficial.

Minow: What are the benefits of recording transfer documents, since it’s not required?

Holm: It gives constructive notice of the transfer. Also, if you record a transfer document there is a presumption of validity for that document over subsequent instruments of transfer of the same title.

Minow: Thanks for talking with us today.

——

Peter Holm is a third year law student at Stanford Law School.

Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use page.

ORPHAN WORKS is red hot again. After a number of failed legislative attempts and a couple of high profile court cases, its back to the drawing board, albeit a better defined drawing board. On the one hand, most everyone agrees that for true orphans, it would be great for us all to be able to digitize, copy, adapt, distribute and otherwise use them. On the other hand, how do we know it’s a true orphan? What if there is an “orphan” owner?

The highly successful open course from Harvard prepared and delivered by Prof. William Fisher is in its Spring 2014 incarnation. It has a clear organization that lets you dive into a specific area that interests you like Technological Protection Measures. A full set of lectures and other resources available to the public online. I especially like the copyright concept maps. A vision for the course can be found here.

By way of introduction, you might wonder: what is the Uniform Electronic Legal Material Act (UELMA)?

UELMA was approved in July 2011 by the National Conference of Commissioners on Uniform State Laws (now the Uniform Law Commission). UELMA addresses the challenges states face in providing permanent public access to trustworthy electronic legal material. UELMA gives states a lot of flexibility. It does not require them to make an online version of the law official. But if a state does designate an online version as official, then UELMA requires that the online version be:

Authenticated, by providing a method to determine that it is unaltered;

Preserved, either in electronic or print form; and

Accessible, for use by the public on a permanent basis.

The types of legal materials that might be included in an UELMA enactment are state constitutions, state session laws, codified laws, and agency regulations which have the effect of law. UELMA also establishes a presumption that a state’s authenticated laws are accurate copies, and that presumption applies in every state that has enacted UELMA. So adopting UELMA will harmonize standards for acceptance of electronic legal material across state boundaries.

If a state designates an online version of its primary legal materials as official, UELMA’s preservation component requires provisions for backup and recovery, and procedures to ensure the integrity and continued usability of the material.

When UELMA was first enacted, the Government Relations Office (GRO) of the American Association of Law Libraries (AALL) reached out to AALL members and chapters, looking for people to get involved with promoting the passage of UELMA.

I had moved to Colorado in July, 2011. In November, the GRO got in touch with me and asked if I would be the lead advocate in Colorado for UELMA. I was really excited about UELMA and I said yes. The GRO sent me position statements and FAQs and a contact in the Colorado Senate. It was about then that I began to wonder what I had done.

I was entirely new to the state, had no personal relations with any state legislators, stakeholders, librarians, Library groups, or anyone else. But I read my materials and went off to meet the senator with all my materials to ask for someone to sponsor the uniform law.

So what did I actually wind up doing, besides meeting with the senator? I personally emailed every senator on the senate judiciary committee and every representative on the house judiciary committee, explaining what UELMA was, sending links, and offering to help. The senator who introduced the bill asked for some further help with issues about disability access under UELMA, and I sent her my comments.

No one else took me up on my offer until a day in March 2012 when I got an email, apologizing for the lateness and asking if I could testify before the Senate Judiciary committee on UELMA the next day . Sadly I was on a business trip in California, so I called the trusty GRO and asked for help. Together we put together a letter, which I emailed in. It was a helpful letter, according to the sponsor. It was read into the record. The bill passed the senate committee unanimously and was sent to finance.

I sent legislators lots of information about the many ways that documents can be authenticated because the Code of Colorado Regulations online is the official version and if UELMA was passed in Colorado, it was going to cost money to authenticate it. The bill sailed through the finance committee and headed to the house. Without any help from me, it passed through both committees in the house and went to the governor.

After UELMA was law, I got in touch with the agency that had been given the job of implementing UELMA and sent them all of the information the GRO had gathered on authentication and put them in contact with Michele Timmons, the Minnesota Revisor of Statutes, who was working on an in-house authentication system.

The key takeaways for me from this process were: you don’t need to know your legislators or have a network in place in order to effect change and work within a new system; there don’t need to be large groups of people involved; the GRO was an amazing resource; and it wasn’t really that much work!

Other states have had a much different road to enactment. For example, in California, an experienced group of law librarian advocates worked closely with Uniform Law Commissioner and Legislative Counsel of California Diane Boyer-Vine to ensure enactment. Each story is different and some of these stories are collected at Local Advocacy Networks: Adopting UELMA in Your State and How You Can Help, by Catherine M. Dunn, Head of Reference Services at the University of Connecticut School of Law Library. There are wonderful resources at the GRO’s UELMA Resources page. AALL has also posted case studies about the Colorado and California experiences written by me and Michele Finerty, Assistant Director for Technical Services at the Pacific McGeorge School of Law.

Which states have enacted UELMA so far? In order of enactment: Colorado, California, Minnesota, North Dakota, Hawai’i, Oregon, Connecticut and Nevada.

If your state has not already passed UELMA, think about getting involved as an advocate. You can contact AALL’s Government Relations Office or your local law library chapter. A few people can really make a difference!

As you may know, the U.S. Copyright Office had approved an allowance for consumers to unlock their cellphones, as part of a triennial Digital Millennium Copyright Act (DMCA) rulemaking process, and consumers rejoiced. Fast forward to the renewal of that exception only to find that the exception was closed up in this year’s rulemaking.

Many folks are upset about this, and a recent bill could fix the situation. The Unlocking Technology Act would allow users to unlock their cell phones, without the need to go through the triennial hearing process.

PopVox, at the moment is running an 83% support to a 17% oppose, but with a base of less than 100 voters. What do you think?

Chairman Goodlatte: This afternoon we will hear from several participants in the Copyright Principles Project who collectively have worked on or studied copyright issues for decades. They have also traveled here from all over the United States and I thank them for their willingness to be here today.

Copyright is a fundamental economic principle enshrined in our Constitution. It has become a core part of our economy and society in ways the framers of our Constitution could never have imagined. The ways in which creators could express themselves when the Constitution was written were very limited. Photography, musical recordings, film, and software did not arrive for decades, if not centuries, afterwards. Even many of these creations have changed significantly as digital technologies made the creation of content more diversified. Digital technologies have also enabled wider distribution to occur -local artists can have a global reach. The passion and skills of our nation’s creators have enhanced our society and culture. Creators deserve our support and respect.

Despite rapidly changing technologies and business models since the enactment of the 1976 Copyright Act, there appear to have been few efforts to bring together parties from different perspectives to discuss how the 1976 Act has worked as technology and business models evolve. There have certainly been short-term events where interested parties spoke for a few minutes each about the latest technology or the latest court decision. What has been lacking is something broader in perspective.

What impressed me about the Copyright Principles Project was not its report or even on what issues its participants were able to agree or disagree. In fact, the Committee does not endorse the specific recommendations and findings of the report. However, we do want to highlight that its participants with strongly held views on copyright law, many of which were in direct opposition to each other, committed to spending three years together in an effort to productively discuss copyright issues. The Committee has invited five of the participants here today as an example of how people with divergent views on copyright law can productively debate a range of copyright issues. Their written testimony highlights the fact that they are all here this afternoon, certainly not speaking with one voice, but speaking with a recognition that the person next to them at the witness table has just as much right to advocate their position on copyright law as they do.

This Judiciary Committee is no stranger to policy issues on which opinions vary widely. This hearing room has, and is continuing, to debate numerous policy issues in which there are sharp disagreements. There were of course sharp disagreements on the 1976 Copyright Act that we use today and whose hearing record in the Committee journals is before me.

Since announcing my interest in a comprehensive review of copyright law several weeks ago, a variety of interested parties began identifying their specific areas of interest that they wanted to see reviewed. I appreciate their input and I look forward to working with all interested parties. We should not be in a rush to focus on specific issues without first recognizing the fundamentals of copyright and the social and economic benefits that copyright brings to our economy. It is my intention to conduct this broad overview by hearing from everyone interested in copyright law as we begin by holding hearings on important fundamentals before we begin to look at more specific issues.

There are numerous questions that will be raised by interested parties during this review. I have several myself including:

How do we measure the success of copyright and what metrics are used?
How do we ensure that everyone’s voice is heard?
How is copyright working for individual artists?
How is copyright working for our nation’s economy?

These are only a few of the issues we will be looking into. This review of copyright law will not be a quick process simply because the issues are so numerous. However, we must undertake this review to ensure that copyright law continues to incentivize creativity and innovation in the digital age.

Secondary Content

On January 28, 2014, Stanford’s Program in Law, Science & Technology hosted the discussion, “Congratulations, you have an app – now what? App Development and Marketing from A-Z.” The discussion featured a panel of high level, experienced practitioner who provide tips, checklists and a road map for addressing legal considerations relating to mobile apps, including best practices for mobile TOU and Privacy Policies, platform considerations and much more.